Tax Agent Registration and Regulation: A Cross-Tasman Contrast

Australia has recently introduced a detailed and prescriptive legislative regime for the registration and regulation of tax agents. By contrast, the New Zealand regime for the registration of tax agents has a minimal legislative component. This article examines the divergent approaches taken in each country, and proffers some suggestions as to the development of these differences. The article outlines the legislative approaches to the regulation of tax agents in Australia under the Tax Agent Services Act 2009, and in New Zealand under s 34B Tax Administration Act 1994. The Australian legislation and associated regulations give responsibility for the registration and regulation of tax practitioners to the newly created Tax Practitioners Board, with prescriptive conditions to be met for registration as a tax practitioner, a code of professional conduct by which practitioners must abide, and a range of sanctions for failure to meet these conditions. In New Zealand, the responsibility for the operation of the system rests with the Commissioner of Inland Revenue, who has a discretion as to the listing of an agent, or removal of an agent from the list. Given such divergent legislative approaches, the article examines the possible reasons for the development of these different approaches

JMA Accounting: Judicial Diminution of Professional Privilege in Tax Investigations?

JMA Accounting and Entrepreneur Services v Carmody suggested that there may be circumstances under which potentially privileged documents should be made available to executive officers, who could scan the documents to make a judgment on their privileged status. This article draws on the rationale underlying professional privilege, and the exceptions to the privilege, to examine the potential impacts that may follow when documents potentially subject to privilege are made available to the executive in the course of an ATO investigation using legislative access powers. The suggestion is made that the decision may amount to abrogation to the executive of a matter which should remain a judicial function

Dividend stripping schemes: Towards a broader judicial interpretation

At issue before the Full Federal Court in Lawrence v FCT was the scope of the operation of s 177E(1) of the Income Tax Assessment Act 1936 (Cth), dealing with schemes by way of or in the nature of dividend stripping, or schemes having the effect of a scheme by way of or in the nature of a dividend stripping. While the taxpayer relied on High Court comments in FCT v Consolidated Press Holdings as limiting the ambit of schemes having the effect of dividend stripping, the Full Federal Court in Lawrence declined to adopt such an interpretation, finding instead that the High Courts comments were merely illustrative of such schemes. This decision arguably adopts a potentially much broader interpretation of s 177E in identifying schemes having the effect of a dividend stripping scheme

The Hardship Discretion - Building Bridges with the Community

The purpose of this paper is to examine the nature and scope of the Commissioners discretion to provide relief to taxpayers in circumstances of hardship. The paper initially examines the considerations which go towards establishing hardship, being the threshold test for the exercise of the Commissioners discretion to grant relief. Given the broad nature of the discretion, the paper reviews the principles which traditionally surround the exercise of such discretionary powers, focusing on those matters which would be considered in determining whether or not to exercise the discretion in a particular case. The paper finally considers how the scope of the discretion fits within the broad administration of the tax system. As part of this discussion, consideration is given as to the potential impact the exercise of the discretion may have on taxpayer attitudes to compliance

Are You Being Served? The New Regime for Tax Agents

In November 2008 the Australian Government introduced into Parliament the long awaited Tax Agent Services Bill 2008 (the Bill), the provisions of which are intended to provide a new statutory regime to govern the registration of tax practitioners, and provide oversight of the tax advice industry. The Bill follows the release of two exposure drafts and wide consultation with professional associations, practitioners and industry. In this paper, Cynthia Coleman and Rodney Fisher provide an outline of the approach taken in the Bill, noting those areas where there has been a change in the legislative approach following previous submissions and consultation on the exposure drafts, and highlighting those areas of the Bill which may still prove contentious

Observations on surveillance imaging after endovascular sealing of abdominal aortic aneurysms with the Nellix system

Purpose: To describe and interpret the findings of computed tomography images acquired before and after endovascular aneurysm sealing (EVAS) with the Nellix endoprosthesis and consider the potential implications of these findings on EVAS planning and performance. Methods: A retrospective review was performed of perioperative imaging from 30 consecutive patients (median age 79 years; 19 men) undergoing elective EVAS at our center between December 2013 and November 2014. The images were systematically reviewed specifically looking for endobag collapse, aortic thrombus compression, and aortic wall disruption according to definitions set a priori. Results: There was no perioperative mortality or endoleak after the EVAS procedure. Endobag collapse, which could potentially result in type II endoleak if occurring near a patent side branch, was seen in the endobags of 12 patients. Aortic thrombus compression, which affects the accuracy of preoperative volume measurements in predicting the amount of polymer needed to perform EVAS, was seen in 15 patients. There was one aortic wall disruption, which could potentially result in intraoperative hemorrhage, though this did not occur in this case. Conclusion: These observations and their potential implications should help clinicians in planning and performing EVAS, as well as in interpreting postoperative imaging

Defining Ordinary Income after McNeil

The High Court decision in Fer v McNeil (2007 HCA 5) decided that the market value ofput options issued to shareholders over their shares in the company, as a mechanism for carrying out a share bUyMback, was ordinary income at the time of issue in the hands of those shareholders who chose not to participate. The jurisprudential basis on which this decision was made is not manifestly clear, but the impact of the decision has the potential to set aside the traditional distinction which has been made between receipts which are on revenue account and those which are on capital account. This article seeks to establish that the approach which is manifest in McNeil is out of step with established principles and that the High Court provided no convincing reasons for setting aside the principles which have traditionally been accepted as detennining which receipts are to be regarded as being on revenue account. This article seeks to show that the approach which is manifest in McNeil was also apparent in the earlier majority High Court decision in Fer v MOJltgOllleJ)1 (1998) 198 CLR 639, although McNeil does not appear to have relied on MOII/gomeIY. However, the authors seek to establish that the principles which can be derived from the majority decision in MolltgolllelY are not sustainable. The problem which emanates from MOlllgomelY is identified and a return to the position which existed prior to MOlltgomelY is advocated as the solution to the problem which now exists. It is suggested that the legislative response of creating different tax treatment for call and put options is a disappointing response, with a preferable approach being the restoration of the previous tax treatment, which had been the undertaking given to industry and capital markets by the government

Abdominal aortic aneurysms and endovascular sealing: deformation and dynamic response

Endovascular sealing is a new technique for the repair of abdominal aortic aneurysms. Commercially available in Europe since~2013, it takes a revolutionary approach to aneurysm repair through minimally invasive techniques. Although aneurysm sealing may be thought as more stable than conventional endovascular stent graft repairs, post-implantation movement of the endoprosthesis has been described, potentially leading to late complications. The paper presents for the first time a model, which explains the nature of forces, in static and dynamic regimes, acting on sealed abdominal aortic aneurysms, with references to real case studies. It is shown that elastic deformation of the aorta and of the endoprosthesis induced by static forces and vibrations during daily activities can potentially promote undesired movements of the endovascular sealing structure